11.2 Jury Selection

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

11.2 JURY SELECTION

11.201 Right to Jury Trial.

A. In General. Virginia is one of a few states where the jury not only determines guilt or innocence but, in the event of conviction, also determines the sentence (albeit a recommendation). Virginia created a jury trial process wherein the determination of guilt or innocence was separated, that is bifurcated, from the sentencing portion of the trial. ⁴³

The Sixth Amendment to the United States Constitution guarantees the right to a trial by jury in all criminal prosecutions. As a result of the United States Supreme Court's decision in Duncan v. Louisiana, ⁴⁴ the states are required to accord this right to the accused in state criminal prosecutions. However, Duncan did not require the states to conform precisely to all the federal procedures for jury trials. In Baldwin v. New York, ⁴⁵ the Court held that the right to jury trial in state courts is limited to cases where the accused faces the possibility of a sentence of more than six months' imprisonment. In Williams v. Florida, ⁴⁶ the Court held that twelve-person juries were not required in state criminal trials.

The right to a jury trial is also guaranteed by the Virginia Constitution but only when the case is tried in a court of record on a plea of not guilty. ⁴⁷ The accused has no right to a jury in a court not of record. The Virginia Constitution provides "for the trial of offenses not felonious by a court not of record without a jury, preserving the right of the accused to an appeal to a trial by jury in some court of record having original criminal jurisdiction." ⁴⁸

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This right is codified in sections 16.1-132 and 16.1-136 of the Virginia Code. Since there are non-felonious crimes in Virginia that carry potential sentences in excess of six months, the Virginia system may deprive the accused of his or her rights as guaranteed by Duncan and Baldwin. However, the United States Supreme Court has used the reasoning of Williams (the states do not have to imitate exactly the federal system of criminal procedure) to uphold Virginia's appeal of right and trial de novo procedure as satisfying the Sixth Amendment right to a jury trial. ⁴⁹ This automatic right of appeal to a court of record for a trial de novo effectively guarantees an eventual right to a jury in the trial of any misdemeanor, regardless of the length of the possible maximum sentence.

The right to a jury trial in contempt proceedings is statutorily provided in summary contempt proceedings under section 18.2-457 if the penalty exceeds $250 or 10 days imprisonment, or cases of indirect criminal contempt in which the penalty authorized exceeds six months imprisonment. ⁵⁰

B. Waiver.

1. Standard. Although the accused has a constitutional right to a jury trial, that right is not solely that of the accused. Based on the requirement that the court and the Commonwealth consent to a waiver of a jury, failure or refusal to grant the consent results in the court and the Commonwealth each having the ability to command a jury. In Singer v. United States, ⁵¹ state-imposed limitations on the right to waive a jury trial were held not to violate the United States Constitution. Only when the accused enters a plea of guilty is there an absolute waiver of a jury without the concurrence of the court or the Commonwealth.

Waiver of jury trial on the issue of guilt waives the jury trial on the issue of punishment as well, since the constitutional right to a jury trial refers only to the right to have a jury determine guilt or innocence and not the sentence. ⁵² If a defendant withdraws his or her waiver of a jury trial, the

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motion should be granted unless accommodating the request would unduly delay the trial or otherwise impede justice. ⁵³

2. Procedure. Upon a plea of not guilty, a jury trial may be waived with the consent of the accused, the concurrence of the commonwealth's attorney, and the concurrence of the court. Both the court and the prosecutor thus have the power to require a jury trial by not consenting to waive it. ⁵⁴

The court must determine whether the accused's waiver was voluntarily and intelligently given. ⁵⁵ A proper waiver requires a finding that the defendant knowingly and intelligently waived the right. Without a finding of a valid waiver, the defendant retains an absolute right to a jury trial. However, where the circuit court had determined that the waiver was "voluntarily and intelligently made" and the court entered "in the record the defendant's consent to be tried without a jury, . . . [t]he circuit court was not required to enter an order stating a finding that [the] jury trial waiver was voluntary and intelligent." ⁵⁶

The accused's consent and the concurrence of the commonwealth's attorney and the court must be entered of record. ⁵⁷ Failure to record the required written consent of all parties is a fatal defect. Something more than mere silence is necessary to give the court jurisdiction to hear the case without a jury. ⁵⁸ Failure to record the concurrence of the commonwealth's attorney on the record also is fatal to the conviction, and it will not be inferred from the court's hearing the case without a jury on the accused's consent. ⁵⁹ For example, an endorsement by the commonwealth's attorney on the reverse side of the indictment is not sufficient since it is not entered of record. The record is the order book that distinguishes courts not of record from the courts of record. Even a record reciting that "the court proceeded to hear and determine the case without intervention of the jury as provided by

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law" does not meet the required procedure and is fatally deficient. ⁶⁰ The Virginia Code incorporates this requirement for all felony trials ⁶¹ but omits this language for misdemeanor trials. ⁶² Since the constitutional requirement does not distinguish between felony and misdemeanor trial procedure, the omission in the Virginia Code as to misdemeanors may not relax the requirement.

Where there is coercion, there cannot be a valid waiver of the right to a jury trial. Even if the defendant's request is a stalling tactic, such motivation does not render the right to a jury trial any less fundamental. ⁶³

The accused must be advised by counsel before he or she consents to waive a jury trial in a felony case. ⁶⁴ This requirement may be waived by the accused, and the advice of counsel need not appear on the record. ⁶⁵ In a misdemeanor case, if the accused is on bail or recognizance and fails to appear, he or she is deemed to have waived a jury and may be tried in absentia as if a plea of not guilty had been entered. ⁶⁶

Whether a defendant who has once waived his or her right to a jury trial may withdraw the waiver is in the sound discretion of the trial court. In the absence of a showing that withdrawal would delay or impede justice, the motion is timely. ⁶⁷

C. Practice. Some practical matters must be considered in making the choice of whether to waive the jury. One study, now dated, reports that a defendant has a 16-percent better chance of acquittal with a jury than a judge. ⁶⁸ If illegally obtained evidence is ruled inadmissible, the jury may not be aware of its existence. The judge, of course, would know of it. Because of rulings on evidence and instructions to the jury, there are greater possibilities for appealable errors in a jury trial. A jury may be more influenced by defense arguments than would a judge in a non-jury trial. Alternatively, with

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the advent of sentencing guidelines, a non-jury trial may prove strategically advantageous to the accused. The sentencing guidelines, although not binding on the judge, may set a "range" for the active period of imprisonment that is less than the statutory minimum sentence. A jury must recommend a sentence within the statutory range and does not have the ability to recommend less or suspend any portion of the sentence. While judges have the discretion to lower or suspend all or part of a jury sentence, they rarely do so.

11.202 Number of Jurors.

A. In General. The provision in the Virginia Constitution authorizing the General Assembly to provide for juries of fewer than twelve but not fewer than five ⁶⁹ for nonfelonious offenses was partially invalidated by Ballew v. Georgia, ⁷⁰ where the United States Supreme Court held that a trial before a jury of five members violated the defendant's right to a jury trial as guaranteed by the Sixth and Fourteenth Amendments. The Virginia Code now provides that seven persons from a panel of not less than thirteen will constitute a jury in a misdemeanor case, and twelve persons from a panel of not less than twenty will constitute a jury in a felony case. ⁷¹ A unanimous vote is required to convict in a jury trial. ⁷² With the exception a capital murder case, where a nonunanimous sentencing verdict automatically results in a sentence of life, ⁷³ the jury sentencing verdict must also be unanimous. ⁷⁴ A defendant, with the concurrence of the court and of the commonwealth's attorney entered of record, may consent to be tried for a felony by a jury of fewer than twelve members. ⁷⁵

B. Alternate Jurors. Alternate jurors may be summoned if, in the opinion of the court, the case may be protracted. ⁷⁶ Their selection and qualifications must be the same in every respect as regular jurors. If, before the case is finally submitted to the jury, a regular juror dies, is discharged, or is excused, the court must order an alternate juror, if there is one, to take his

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or her place in the jury box. An alternate juror who does not replace a regular juror must be discharged when the jury retires to consider its verdict. ⁷⁷

11.203 Selection and Summons Procedures.

A. In General. Before July 1 of each year, the judge of each court of record in which juries are impaneled must appoint two to fifteen jury commissioners who will serve for the next year. ⁷⁸ In counties having the urban county executive form of government, jury...